Rethinking Do Not Call

Do Not Call (DNC) regulations are like pollution, workplace safety, and driving rules. Unless the penalties are tough and are imposed swiftly they will be flouted because there is considerable selfish personal gain by doing so.

Yet I'm beginning to wonder with DNC whether a different approach is needed for calls, e-mails and direct mail.

For DNC (and CAN-SPAM) is opt-out i.e we "you are in charge, we have to go out of our way tell you not to bug us" whereas today's consumer and public ethos is opt-in i.e. "we are in charge, you have to go out of your way to ask our permission to contact us."

People i.e. ourselves don't like to be bothered, have busy lives, we work longer, commute more hours, and have scarcer personal time. Contacting us also costs us money as we switch to wireless and text from landline and voice, and junk mail adds to garbage and recycling expenses.

Opt-out is flawed from the consumers' perspectives for that reason: that companies will continue to bother us unless we say no...and too often when we do say that they will ignore us, like unwanted suitors, becoming pressing and persistent until they get what they want.

The DNC is coming to a head in Canada where the amazingly pathetic enforcement of the country's DNC rules by the CRTC (Canadian Radio-television and Telecommunications Commission), the country's communications regulator are causing politicians to have a re-think about it.

In fact last year the Canadian government introduced a opt-in-focused spam-regulating bill, the Electronic Commerce Protection Act (ECPA) that would have enabled it to repeal the DNC but the legislation died on the order paper when the ruling Conservatives prorogued Parliament, i.e. ended the legislative session just before Christmas. The ECPA has been replaced by a new bill, the Fighting Internet and Wireless Spam Act (FISA) introduced in late May. It is similar but lacks the DNC list-ending provision.

The Toronto Star carried a Canadian Press story last week that revealed that the CRTC has imposed $73,000 in fines in less than two years, founded on more than 300,000 complaints against unwanted telemarketers -- but collected only $250 as of March 1. This startling news came about it said as a result of an inquiry by Liberal Senator Percy Downe.

"It is a colossal disappointment," the article quoted Dan McTeague, who was one of the Liberal MPs [Members of Parliament] who first drafted DNC legislation when he was a member of Jean Chretien's [Liberal ]government in the late1990s."

"The reality is that expectations of the legislation have not been met," said McTeague, now the Opposition consumer affairs critic."

"He called the list "a very hollow and very empty promise to provide consumers with a modicum of assurance the list would be respected."

"It's up to Parliament now to scrap the legislation to begin anew. This is clearly not worth the paper it is written on."

There have been 11 fines imposed since the list went live in September 2008 Industry Minister Tony Clement's office told the wire service, reported in The Star.

"As of March 1, no company has officially refused to pay the imposed administrative monetary penalty," said the response."

"Collection action continues to be pursued on all files where the CRTC has imposed a (fine) in relation to a violation of the National Do Not Call List rules."

But MP McTeague told the CP that "it's evident the list is not being respected and enforcement efforts are failing. Parliament has to send a much stronger message ... and follow through in a much more deliberate way that protects consumers from these kinds of calls."

University of Ottawa professor Michael Geist, a critic of how the government has handled the issue, told the CP, as reported in The Star the DNC list "feels more like a 'do-not-hesitate-to-call list" and needs to be revamped."

"With exceptions for charities, political parties, newspapers, and businesses with a prior business relationship, virtually all calls can continue even when a number is on the do-not-call list," Geist, who holds the university's Canada Research Chair in Internet and E-commerce Law."

"Millions of numbers have been registered ... demonstrating that Canadians want to regain control over their privacy at home."

"It has become clear that the law needs significant retooling to provide a genuine, effective system against unwanted calls along with an enforcement system with tough consequences for violations."

"In fact, the wireless sector had the distinction of taking the top three spots with Rogers and Telus ranking second and third respectively," said Prof. Geist's site.The wireless sector isn't alone. Other companies also allegedly bothered Canadians. "There were also hundreds of complaints against Canada's top financial institutions and retailers including RBC, CIBC, Scotiabank, TD Canada Trust, and Sears."

In contrast to Canada the U.S. has been more successful on DNC enforcement. The CBC had a story that compared the two countries and reported that American authorities have collected over $22 million from telemarketers and shut down several fraudulent operations.

Perhaps not surprisingly, the CRTC refused to comment despite repeated requests, stating "we are not giving interviews on the D.N.C. at the moment."

Lest anyone think these are happy times in the U.S. well there continues to be complaints about automated robocalls, repeated calls from political parties, auto warranty outfits, credit card firms, the same skels that led to the state and later federal DNC lists...

One wonders if a better alternative is to scrap the DNC lists and making any form of marketing communications--voice, text and while we're at it delivered mail--opt in rather than opt out, and then clamp down hard on violators.

In other words, bring back that provision in the ECPA into FISA that would end the DNC list. Here is the writeup from the ECPA on the Parliament of Canada's web site that discusses it:

"Since it was introduced in 2008, the DNCL has been subject to much criticism owing to telemarketer misuse of the names on the list.(14) The breadth of the definition of "electronic message" in the ECPA means that the definition could apply to unsolicited voice mail messages left by telemarketers, and subject them to the "opt in" approach of the new legislation whereby they must obtain permission before contacting people, overriding the existing regime."

This approach makes sense for another reason and that is the integrating of communications channels, enabled by the widening adoption of voice over IP and wireless. The channels are soft and fluid with each of us flipping from one to another.

In fact the U.S. can do likewise by rolling in CAN-SPAM with the TCPA and TSR to create one integrated law. Getting rid of the blanket DNC would save money and hassle.

And while governments are at it toss in opt-in for junk mail including billing stuffers whose transportation both to mailboxes and to recycling centers but too often to landfills and incinerators adds to our environmental mess.

There also needs to be end to loopholes for charities, existing business relationships (EBRs), political parties and newspapers.

Give charities, EBRs and parties one free call to each person on their lists, whose scripts will ask them if they wish to be continued to be contacted and record their responses and notate them on internal lists that must be maintained.

And does it make sense to exempt newspapers: when information is being increasingly being communicated through other channels? For example can the local ISP or cable or satellite company telemarket you incessantly if among the services they sell are news channels?

The bottom line is this: in the multichannel/customer-in-charge era it makes no sense at all to continue with opt-out regimes like DNC and CAN-SPAM. Opt-in, and tough, enforced and integrated legislation is what today's environment calls for to enable consumers to conduct interactions and transactions without being bothered at their cost. Both by scam artists and thieves pretending to be 'marketers'...but also by legitimate businesses, charities and parties who need to get it the message that to get and keep customers', donors' and supporters' loyalties, money and votes means listening to them...when they say NO as well as YES.